United States District Court, E.D. Virginia, Alexandria Division
MEMORANDUM OPINION AND ORDER
Anthony J. Trenge United States District Judge.
its acquisition by General Dynamics Corporation
("GDC"), effective April 3, 2018, Defendant CSRA
Inc. ("CSRA") became operationally integrated into
General Dynamics Information Technology, Inc.
("GDIT"), a business unit within GDC; and on May 4,
2018, Plaintiff David Loose, who had been employed as
CSRA's Treasurer, was terminated from his employment. In
this action, he alleges that (1) he was terminated from his
employment because of his age in violation of the Age
Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. §§ 621-34 (the
"ADEA") (Count I); and (2) GDIT did not hire him
because of his age, also in violation of the ADEA (Count II).
[Doc. No. 1], Complaint, at 11-16. He seeks front pay and
back pay, benefits, pecuniary losses, pre-judgment interest,
and post-judgment interest, liquidated damages, compensatory
damages, attorneys' fees and costs, injunctive relief,
and equitable relief. Id.
pending is Defendants' Motion for Summary Judgment [Doc.
No. 127]. The Court held a hearing on the Motion on
October 17, 2019, following which it took the Motion under
advisement. For the reasons stated below, the evidence is
insufficient as a matter of law to establish that either
Defendant discriminated against Plaintiff because of his age
in violation of the ADLA; and Defendants are therefore
entitled to judgment in their favor as a matter of law.
Defendants' Motion for Summary Judgment is therefore
facts below are undisputed, unless otherwise noted.
Loose is the former Treasurer of CSRA. Prior to its
acquisition by GDC in 2018. CSRA was a publicly traded
company. Loose was born on I I and was 58 years old at the
time of the alleged discrimination. He worked for CSRA from
2016 until his termination on May 4, 2018. At the time the
acquisition w:as announced. Loose reported to
David Keffer, CSRA's Chief Financial Officer.
February 9, 2018, GDC announced the acquisition of CSRA. That
acquisition closed on April 3. 2018. As a result of that
acquisition. CSRA's operations were merged into GDIT. a
then-existing business unit of GDC, resulting in the
elimination of a number of CSRA positions. One of those
positions was Loose's position as CSRA Treasurer, because
GDC. a global publicly traded company, maintained a Treasury
Department, headed by David Fogg, and GDIT did not have a
separate Treasury Department, or Treasurer, or position
comparable to Loose's Treasurer position at CSRA. The
need for CSRA's Treasury department, as such, was
therefore eliminated, with those finance related tasks not
performed in GDC's Treasury Department transferred to a
variety of employees within "the new GDIT."
Following the announcement of the acquisition in February
2018, Loose began efforts to locate a position outside of
GDC. In his communications with his own business contacts in
connection with those efforts, Loose expressed his belief
that he would be losing his job once the acquisition closed,
that he would need to stay with CSRA until the acquisition
closed, but that as CSRA's corporate treasurer, it was
very unlikely that he would have a position with GDIT.
See SUMF ¶ 8.
following the announcement, Loose also explored opportunities
within GDC. In that regard, CSRA told its employees that,
"If you're interested in a new opportunity, we
encourage you to talk to your manager. In addition, reach out
to CSRA's Talent Mobility team..... As we proceed through
the integration planning process we will learn more about
what positions will exist within the new company. Then we can
offer a process to employees to access career opportunities
across our broad platform." [Doc. No. 144-10], at 6.
Following these instructions, Loose recalls telling Keffer,
his manager within CSRA, that he was interested in a job at
GDIT and giving him his resume. [Doc. No. 144-6], Deposition
of David Loose ("Loose Dep."), at 33:5-8. Loose
also recalls that Keffer told him that Keffer gave his resume
to Alison Harbrecht, GDIT Chief Financial Officer, who had
been selected, rather than Keffer, to be the Chief Financial
Officer of the new GDIT, and that he was recommending him for
various roles. Id. at 25:5-13. Loose also recalls
that in response to asking Keffer whether he should contact
Harbrecht directly, Keffer advised him "no, and that he
was 'on the case.'" Id. at 78:6-9.
Keffer testified that he does not recall ever sending
Loose's resume to Harbrecht or letting her know that
Loose was interested in finance positions generally within
GDIT. [Doc. No. 144-7], Deposition of David Keffer, at
his conversations with Keffer, Loose never heard from
Harbrecht about an interview or being considered for any jobs
within GDIT. Nevertheless, Loose never sent his resume to or
contacted Harbrecht about a job with GDIT. On February 14,
2018, he did, however, send his resume to David Breen, GDIT
Vice President of Human Resources, with a note that he
"hope[d] that [he] may be fortunate enough to have a
role at GD going forward." [Doc. No. 144-21]. Breen
testified that he never spoke to anyone at GDIT about
Loose's interest in a position.
the announcement of CSRA's acquisition, Harbrecht, as the
newly appointed CFO for the new GDIT, was tasked with
determining the structure of the Finance Division within the
new GDIT, including which roles would be eliminated.
See Complaint, ¶ 30. In that regard, she
identified six positions that would report directly to her in
the "New GDIT." SUMF ¶ 22. For those
positions, she then identified, interviewed, and considered
those CSRA and GDIT employees who were currently performing
the functions associated with those positions. SUMF ¶
March 1, 2018, Harbrecht had a telephone call with Keffer to
discuss individuals in his finance organization. SUMF ¶
9. Keffer sent her his organization chart to facilitate the
discussion. According to Harbrecht's notes, she
identified three CSRA employees who were performing roles
that were no longer needed. See SUMF ¶ 9. With
regards to Loose, Harbrecht's notes state that it was
"very important to get him with [GDC] Treasury very
soon," and she reminded herself to "Talk to Dave
[Fogg, GDC Treasurer] and Bola [Otitoju]," who was a
member of the GDC Treasury department, SUMF ¶ 9, and she
later emailed Keffer that she had given "the [GDC]
Treasurer, Dave Fogg, a heads up that David Loose would be
contacting him." SUMF ¶ 10. Keffer responded that
he would "put Dave Fogg in touch with David Loose,"
which Keffer later did. SUMF ¶ 10, 29.
March 6, 2018, Harbrecht spoke with Keffer again about his
direct reports and took notes; her only question about Loose
was "Keep for how long?" and she noted that she
would "Take the lead from Dave Fogg [GDC Treasurer] on
how long to keep." SUMF ¶ 11.
March 8, 2018, Keffer sent Harbrecht a list of "Day 1
redundancies" and "all near-term reductions"
based on their discussions. SUMF ¶ 12. Loose was
identified as one of the "Early cost synergies"
with a termination date "TBD." The only remaining
action regarding Loose was to "Finalize term decision
(and date)." SUMF ¶ 12.
March 9, 2018, Loose met with Fogg to discuss CSRA Treasury
issues. SUMF ¶ 30. In advance of this meeting, Loose
emailed his resume to Fogg and explained he wanted to discuss
how long the CSRA Treasury team would need to stay in place
during the integration, as well as whether GDC had any
permanent positions for Loose's team. See SUMF
¶ 30; Disputed Facts ¶ 30. At the meeting, Fogg
informed Loose that there were no vacancies in GDC's
Treasury department, and that if he was interested in a job
with GDIT, he would need to "work through"
Harbrecht. [Doc. No. 128-34], Pl.'s Corrected Responses
to Defendant GDIT's First Set of Interrogatories No. 13
("Mr. Fogg was clear that I would have to work through
Alison Harbrecht, regarding GDIT positions."). Plaintiff
recalls that Fogg told him that he would touch base with
Harbrecht to see if there were any positions for Loose at
GDIT, and that Fogg later informed him that Harbrecht said
there were no roles left. Disputed Facts ¶ 31. On March
12, 2018, Loose emailed the resumes of his direct reports to
Fogg with a request for assistance in finding them roles at
GDC. SUMF ¶ 32.
March 20, 2018, Harbrecht informed Human Resources that Loose
and the CSRA Treasury department would be terminated
"likely in the first 30-90 days" after the
acquisition was complete, but that their "departure
dates are being coordinated with [GDC] Treasury." SUMF
¶ 14. Throughout this time period, Loose expressed his
understanding that there were "no roles for any of [his]
people" unless Harbrecht "pull[ed] jobs out of a
hat." SUMF ¶ 15.
or before April 2, 2018, Harbrecht had identified the
individuals she selected to fill six of the seven direct
report positions, leaving to be filled only the position of
GDIT Intel Division Chief Financial Officer, whose incumbent
announced his retirement around the time of the acquisition.
[Doc. No. 128-6], Deposition of Alison Harbrecht, 176:8-11.
There is no evidence that Harbrecht identified, considered,
or interviewed Loose for any of these positions.
April 3, 2018, GDC's acquisition of CSRA closed. On April
6, 2018, Keffer, Loose's manager and Harbrecht's
counterpart within CSRA, was terminated.
April 6, 2018, Loose informed Harbrecht that the CSRA
Treasury department was working to migrate Treasury tasks to
the GDC Treasury department, but Loose had identified "a
number of tasks which [Loose's] team does routinely,
which are not replicated in the [GDC] Corporate treasury; so
[Loose] assume[d] that these functions [would] be carried out
at GDIT." SUMF ¶ 42; Disputed Facts ¶ 42. He
asked Harbrecht to identify a GDIT resource to whom
Loose's team could over turn their tasks before they were
released in early May. SUMF ¶ 42. Harbrecht identified
XXXXX, GDIT's then-existing
Senior Manager of Finance, who was three levels below
Harbrecht, and whose job was materially different from that
of a Corporate Treasurer. Although Loose was communicating with
Harbrecht during this period, Loose never meet with Harbrecht
in person, never forwarded his resume to her, never discussed
with her whether there were any openings that he might fill,
never asked her to be considered for any of the direct report
or other GDIT positions, and never said to her that he was
interested in being considered for a job within GDIT. SUMF
¶ 36; Disputed Facts ¶ 36.
April 6, 2018, Loose met with Harbrecht in person for the
first time to discuss corporate integration work. SUMF ¶
36; [Doc. No. 128-40]. At no time, including during this
meeting, did Loose inform Harbrecht that he was interested in
a non-Treasury role at GDIT. SUMF ¶ 36.
April 9, 2018, Loose learned that his last day would be May
4, 2018. SUMF ¶ 17.
22, 2018, 18 days after his employment ended, Loose applied
for the open position of GDIT Intel Division's Chief
Financial Officer through the external, public website on
which the job opening was posted. SUMF ¶ 50. For that
position, Harbrecht decided to interview only "internal
candidates," that is, those candidates who were already
employed within the GDC family of companies. SUMF ¶ 48.
Because Loose's employment had terminated on May 4, 2018,
Recruiter Colleen Nicoll, who processed his application and
did not know Loose, treated Loose at that point as an
"external candidate" and did not pass his resume on
to Harbrecht. There is no evidence that Harbrecht saw
Loose's application or considered him for this CFO
position. SUMF ¶ 50-52. Harbrecht hired an internal
candidate, XXXXX who was XXXXX years old and with whom she had previously
worked at GDC Mission Systems, another GDC company. SUMF
September 12, 2018, Loose filed a Charge of Discrimination
with the Equal Employment Opportunity Commission, and he
filed this action on April 18, 2019.
STANDARD OF REVIEW
judgment is appropriate only if the record shows that
"there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law." Fed.R.Civ.P. 56(c); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Once a
motion for summary judgment is properly made and supported,
the opposing party has the burden of showing that a genuine
dispute exists. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986). To defeat a
properly supported motion for summary judgment, the
non-moving party "must set forth specific facts showing
that there is a genuine issue for trial."
Anderson, 477 U.S. at 247-48 ("[T]he mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine
issue of material fact."). Whether a fact is considered
"material" is determined by the substantive law,
and "[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment." Id. at
248. The facts shall be viewed, and all reasonable inferences
drawn, in the light most favorable to the non-moving party.
Id. at 255; see also Lettieri v. Equant
Inc., 478 F.3d 640, 642 (4th Cir. 2007). However,
"[m]ere unsupported speculation is not sufficient to
defeat a summary judgment motion." Francis v. Booz
Allen & Hamilton, Inc., 452 F.3d 299, 308 (4th Cir.
2006). "Conclusory assertions that [a
decisionmaker's] state of mind and motivation are in
dispute are not enough to withstand summary judgment."
Goldberg v. B. Green & Co., 836 F.2d 845, 848
(4th Cir. 1988). Additionally, factual disputes are not
demonstrated through "mere speculation or the building
of one inference upon another." Shirvinski v. U.S.
Coast Guard, 673 F.3d 308, 320 (4th Cir. 2012) (quoting
Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir.
contends in Count I that CSRA terminated him because of his
age; and in Count II, that GDIT failed to hire him because of
his age, first, before his termination, for any of the six
"direct reports" to Harbrecht, and then, after his
termination, for the job of GDIT Intel Division's Chief
Count I: Discriminatory Termination (against CSRA)
ADEA prohibits employers from taking an adverse action
against an employee who is at least 40 years of age
"because of the person's age. 29 U.S.C. §§
623(a)(1), 631(a). Loose alleges that he was discriminated
against on the basis of his age when he was terminated from
his position at CSRA, effective May 4, 2018. To prevail on
his ADEA claim, Loose must show, inter alia, that
age was the "but for" cause of his termination.
Harris v. Powhatan Cty. Sch. Bd., 543 Fed.Appx. 343,
346 (4th Cir. 2013) (citing Gross v. FBI Fin. Serv.,
Inc., 557 U.S. 167, 177 (2009).
establish a prima facie case of discriminatory termination
based on age, Loose must show: (1) he is over 40 years old;
(2) he was terminated; (3) he was performing his job duties
at a level that met the employer's legitimate
expectations; and (4) his position remained open or was
filled by a similarly qualified, substantially younger
applicant. Baqir v. Principi, 434 F.3d 733, 742 (4th
Cir. 2006); see also O'Connor v. Consol. Coin
Caterers Corp., 517 U.S. 308, 301-12 (1996). Once the
plaintiff establishes a prima facie case, the burden shifts
to the defendant to articulate a legitimate,
nondiscriminatory reason for the adverse employment action.
Spruill v. Kip Killmon's Tysons Ford, Inc., No.
1:12-cv-806, 2012 WL 4829339, at *4 (E.D. Va. Oct. 10, 2012).
If the defendant satisfies its burden of production,
"the plaintiff is afforded the 'opportunity to prove
by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons,
but were pretext for discrimination.'" Dennis v.
Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 646
(4th Cir. 2002) (quoting Texas Dep't Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981)).
satisfy the fourth element of the prima facie case for
discriminatory termination, the position from which a
plaintiff was terminated must have remained open or have been
filled by a similarly qualified applicant outside the
protected class. Baqir v. Principi,434 F.3d 733,
742 (4th Cir. 2006). Where a position has been eliminated,
especially without proof of discriminatory reasons for
eliminating the position, a plaintiff cannot satisfy the
fourth element by merely disputing the reasons for the
elimination. See Goode v. Central Virginia Legal Aid
Soc, Civil Action No. 3:14-cv-281, 2014 WL 3945870, at
*6 (E.D. Va. Aug. 12, 2014) (dismissing a complaint where the
plaintiff "acknowledge[d] that his position and some of
his job duties were eliminated [but disputed] the reasoning
as to both" as failing to satisfy the fourth prong of
the prima facie case). Additionally, a plaintiff is not
"replaced" in his position where some of his former
duties were reassigned to other employees. Rush v.